Decision No 243/2012/EU of the European Parliament and of the CouncilShow full title

Article 5 Competition

1. Member States shall promote effective competition and shall avoid distortions of competition in the internal market for electronic communications services in accordance with Directives 2002/20/EC and 2002/21/EC.

They shall also take into account competition issues when granting rights of use of spectrum to users of private electronic communication networks.

2. For the purposes of the first subparagraph of paragraph 1 and without prejudice to the application of competition rules and to the measures adopted by Member States in order to achieve general interest objectives in accordance with Article 9(4) of Directive 2002/21/EC, Member States may adopt, inter alia, measures:

(a) limiting the amount of spectrum for which rights of use are granted to any undertaking, or attaching conditions to such rights of use, such as the provision of wholesale access, national or regional roaming, in certain bands or in certain groups of bands with similar characteristics, for instance the bands below 1 GHz allocated to electronic communication services. Such additional conditions may be imposed only by the competent national authority;

(b) reserving, if appropriate in regard to the situation in the national market, a certain part of a frequency band or group of bands for assignment to new entrants;

(c) refusing to grant new rights of use of spectrum or to allow new spectrum uses in certain bands, or attaching conditions to the grant of new rights of use of spectrum or to the authorisation of new spectrum uses, in order to avoid the distortion of competition by any assignment, transfer or accumulation of rights of use;

(d) prohibiting or imposing conditions on transfers of rights of use of spectrum, not subject to national or Union merger control, where such transfers are likely to result in significant harm to competition;

(e) amending the existing rights in accordance with Directive 2002/20/EC where this is necessary to remedy ex post the distortion of competition by any transfer or accumulation of rights of use of radio frequencies.

3. Where Member States wish to adopt any measures referred to in paragraph 2 of this Article, they shall act in conformity with the procedures for the imposition or variation of such conditions on the rights of use of spectrum laid down in Directive 2002/20/EC.

4. Member States shall ensure that the authorisation and selection procedures for electronic communications services promote effective competition for the benefit of citizens, consumers and businesses in the Union.